NINOMANIA

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:: Monday, December 22, 2008 ::

Here it says:

This month, AIG announced that it would offer Shariah-compliant homeowner insurance policies, known as takaful, to U.S. customers through one of its subsidiaries. To be Shariah compliant, companies cannot earn interest and must agree to send a percentage of their revenue to Islamic charitable groups.

The lawsuit — by Iraq war veteran Kevin Murray, on behalf of U.S. taxpayers, against Treasury Secretary Henry Paulson and the Federal Reserve — claims that by subsidizing AIG, the federal government is conveying "...a message of endorsement and promotion of Shariah-based Islam ... and [a] message of disfavor of and hostility toward Christianity and Judaism."

This would not be the first time the Thomas More Legal Center, a group whose "side" I'm supposedly "on," has taken positions I consider strange or just wrong.

I'm not exatly doing backflips about an indirect government cash-flow that, after passing through independent decision-makers, ends up in Shariah-based loans; but to argue that this is "an establishment of religion" within the meaning of the First Amendment is (a) contrary to just about every post-1985 Establishment Clause decision from the Supreme Court, and (b) very harmful to Catholic and other Christian institutions that may wish to participate in government benefits programs on an equal basis with secular institutions, and whose right to do so the TMLC would, I'm pretty sure, hasten to defend.

:: David M. Wagner 2:38 PM [+] ::
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:: Thursday, December 18, 2008 ::

With a lot of debate going around about whether to allow pro-life medical professionals to refuse to perform abortions, dispense abortifacient drugs, or make themselves morally complicit in abortion by referring patients to others who do these things (that would certainly constitute accomplice liability if abortion were a crime), comes now this story:

Cake request for 3-year-old Hitler namesake denied

Now, my sympathies are entirely with the cake-decorator who refused the request. But what will be the views of those who, in the abortion context, say consumer sovereignty is supreme?

Eugene Volokh is blogging about this too, and it will (of course) be interesting to see what he says.

:: David M. Wagner 1:37 PM [+] ::
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:: Tuesday, December 02, 2008 ::

Least-cited Supreme Court cases

:: David M. Wagner 3:15 PM [+] ::
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:: Monday, December 01, 2008 ::

Is Hillary Clinton ineligible for Secretary of State because of the Emoluments Clause -- Art. I, Sec. 6, cl. 2? Michael Stokes Paulsen and Eugene Volokh take up the issue here. (Hat-tip: colleague Brad Jacob)

:: David M. Wagner 1:59 PM [+] ::
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:: Saturday, November 29, 2008 ::

Catholic News Agency: Why Kmiec will not become the new Vatican Ambassador. I mean,when a high Vatican official says in effect, even without attribution, "You do and we'll toss him in the Tiber and see that he lands on something sharp," that's not exactly encouraging, is it?

:: David M. Wagner 7:13 PM [+] ::
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:: Saturday, November 22, 2008 ::

NYC Churches Ordered Not To Shelter Homeless NEW YORK (CBS) ― City officials have ordered 22 New York churches to stop providing beds to homeless people.

With temperatures well below freezing early Saturday, the churches must obey a city rule requiring faith-based shelters to be open at least five days a week -- or not at all.....

"We really don't want people sleeping on the streets, on grates, on church steps. We want people sleeping in beds," said Homeless Commissioner Robert Hess.

If the ordinance really does say in effect "faith-based shelters (but not other shelters) are subject to such-and-such restrictions," then it's obviously not neutral or generally applicable, and would therefore be subject to strict scrutiny in a Free Exercise challenge.

I suppose the City's compelling interest would be the civic-order value of not having "people sleeping on the streets, on grates, on church steps," etc. -- you know, "broken windows" and all that. I myself might estimate that interest somewhat highly (whether "compelling" or not, I don't know), but several courts have held that, not only is there no c.s.i. in preventing homeless people from sleeping outdoors -- homeless people actually have a constitutional right to do so!

Any Free Exercise litigators in the greater New York area? This one should be low-hanging fruit.

:: David M. Wagner 10:54 PM [+] ::
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:: Friday, November 21, 2008 ::

AG Mukasey is OK, and the Federalist Society has sent around this message from him:

Well, as I was saying...

Let me please begin by underscoring what an honor it was to speak to you last night. I am, as you might imagine, quite embarrassed to have collapsed last night. I hope that embarrassment is not the product of undue human pride, or at least not principally so. I am embarrassed in part because I fear I ruined your evening and caused you concern - for that I am truly sorry. Equally important, I hope the shortened conclusion of the speech did not detract from the message I hoped to convey: Specifically that the issues of law and policy relating to our continuing national security are real, and are worthy of the most careful thought and deliberation so as to keep the American people safe.

The Federalist Society has spent the last 25-plus years promoting thoughtful and fair debate concerning the critical legal and public policy issues facing our nation. It was an honor to address you last night, and I urge you to continue the fine efforts of the Federalist Society in the future.

Finally, I was truly humbled to hear all of the prayers and well wishes sent on my behalf from attendees at the dinner. Thank you all. I am, fortunately, well, and I too pray for all of our good health and for the future of the Nation we all love.

Very Truly Yours,
Michael Mukasey

:: David M. Wagner 4:37 PM [+] ::
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:: Thursday, November 20, 2008 ::

Praying for AG Mukasey....

:: David M. Wagner 11:30 PM [+] ::
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It appears that AZ Gov. Janet Napolitano, attorney to Anita Hill during the Thomas confirmation outrage, is going to be the one watching our movements as Security as Homeland Security. Any statements of concern, anyone? Sen. Hatch? Sen. Specter? Former Sen. Danforth? Anybody home?

MORE INFO: Newsmax reports:

Napolitano's representation of Hill became an issue in 1993 when the Senate considered Clinton's nomination of Napolitano for the U.S. attorney's job. Napolitano refused to answer questions about a private conversation with one of Hill's witnesses, Susan Hoerchner. At issue was whether Napolitano persuaded Hoerchner, Hill's corroborating witness, to change her testimony.

Hoerchner initially told the Senate Judiciary Committee during its Thomas hearings that Hill had told her in the early 1980s that she had been sexually harassed by Thomas. After Napolitano requested and had a private conversation with her, Hoerchner told the committee she wasn't certain of the date Hill told her about the alleged harassment. Napolitano said she couldn't answer questions about the talk because Hoerchner wouldn't waive her right to confidentiality.

Some Republicans accused Napolitano of stonewalling the committee and contended it could cause a dangerous precedent if the panel confirmed a nominee without having all the information it needed. Democrats defended her, saying Napolitano wanted to be forthcoming but couldn't due to attorney-client privilege.

Some senators said at the time that Hoerchner had admitted before talking with Napolitano that she was just guessing about the date Hill first said she'd been harassed by Thomas. A book published after the Thomas hearings said the date Hoerchner guessed, September 1981, was before Hill went to work for Thomas

Well, in all fairness to Napolitano: (1) she's on solid ground re attorney-client privilege, and (2) it seems her intervention, in this instance, was to cause Ms. Hoerchner to give a non-perjurious answer (or a less perjurious one?).

The larger point -- and it has considerable ramifications for the direction of "this our tottering state" -- is whether conservatives have memories as long as those of liberals. There are solid conservative lawyers lying around unconfirmed today to the judgeships to which they were appointed, because of associations far less rebarbative than Anita Hill.

If, for conservatives, the Thomas-Hill hearings are water under the bridge, then anything can be. For liberals, nothing ever is.

:: David M. Wagner 12:54 PM [+] ::
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Boumedienne, along with four others, is now loose. OK. Gulp, and hope for the best.

:: David M. Wagner 12:50 PM [+] ::
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:: Tuesday, November 18, 2008 ::

How long will the "pro-choice" movement continue to use that name, when its latest initiative is to deny to objecting doctors, pharmacists, etc., any choice as to whether to take part in abortions or not? The latest administrative battle over this issue is reported, with biases all in place, here.

"Choice" was never more than a political cover. Only one "choice" is to be protected, and it's certainly not the choice of conscientiously objecting medical professionals who cannot be complicit in abortion. Where they are concerned, the overriding value turns out to be not "choice," but "access."

:: David M. Wagner 8:35 PM [+] ::
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:: Thursday, November 13, 2008 ::

David Lat nails it: "New Haven and judicial fiat. Some things just belong together."

:: David M. Wagner 12:23 PM [+] ::
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:: Wednesday, November 05, 2008 ::

The headline news not in the headlines:California voters approve Proposition 8, overturning state Supreme Court decision that created same-sex marriage.

:: David M. Wagner 11:42 AM [+] ::
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:: Sunday, November 02, 2008 ::

A Facebook group for us conservative Yalies: Coastal Elites for Sarah Palin!

:: David M. Wagner 5:46 PM [+] ::
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:: Saturday, November 01, 2008 ::

Let me see if I can figure out this Liddy Dole "Godless" ad thing. It says here:

Dole's 30-second advertisement shows clips of some members of an atheist advocacy group -- the Godless Americans Political Action Committee -- talking about some of their goals, such as taking "under God" out of the Pledge of Allegiance and removing "In God We Trust" from U.S. currency. It goes on to question why Hagan went to a fundraiser at the home of a man who serves as an adviser to the group.

"Godless Americans and Kay Hagan. She hid from cameras. Took Godless money. What did Hagan promise in return?" the narrator says.

The ad ends with a picture of Hagan, as another woman declares in the background, "There is no God!"

On Wednesday, her attorneys demanded the ad come down within 24 hours. On Thursday, Hagan's attorneys filed a lawsuit in Wake County Superior Court accusing Dole of defamation and libel.

Well that's interesting, because in yesterday's mail I got this big card for which the Democratic Party of Virginia claimed credit, if that's the word, that showed an affecting young actress in the role of a woman who, the card claimed, had been raped and was now pregnant, and that went on to claim that Thelma Drake (that's my local Congressman) wants to put this young woman in jail for having an abortion.

Now, there is of course no way Thelma Drake wants to put women such as this in jail, or "women and doctors" (as the card says, emphasis added) in jail for abortion in case of rape. (I'm not conceding the "rape exception," I'm just stating the reality of the worthy Mrs. Drake's agenda.)

So, should Mrs. Drake sue? Will she guarantee her own reelection by running hard-hitting counter-ads? What advice you do you have for her, Kay Hagan?

Tags: Candidates use over-the-top advertising: media (sometimes) shocked

:: David M. Wagner 2:18 PM [+] ::
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Electoral College: I just want to put this on the record before the election. It's just possible that, as in 2000, the popular vote and the electoral vote will reach opposite results. This could benefit either candidate.

Under our Constitution, we choose our Presidents by electoral vote. The merits of this system have been and will be debated (though I'm half-hoping the EC system twigs it in favor of the Democrat this time, so we stanch the flow of anti-EC articles into the law reviews for a while), but there's not the slightest doubt that for now, this is the rule laid down.

I don't suppose Obama voters come here very often for advice, but let me say this to McCain voters: if we win the popular vote but lose the electoral vote, Obama is elected President, and no whining about the Electoral College!!

:: David M. Wagner 1:43 PM [+] ::
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:: Monday, October 27, 2008 ::

Here is a guest column that ran in The Philadelphia Inquirer.

Here is a story on the even-faster-than-expected circulation decline of American newspapers. Here is a list where you can find the Philly Inq's place within the sinkhole.

I link, you correlate.

:: David M. Wagner 11:43 PM [+] ::
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This Obama interview from 2001 is rattling around the Web today, because it presumably shows the radical nature of his commitment to economic redistribution. Drudge hedder: "Tragedy the 'redistribution of wealth' not pursued by Supreme Court."

Kind of, sort of, but maybe not quite. The interview certainly shows that Obama thinks government-directed redistribution of wealth is a good thing. That shouldn't be news: anyone who listened to his convention speech heard the same thing. Clearly, for him, the "age of big government being over" is over. In case anyone missed this, the circulation of this interview is a late wake-up call.

Does it show anything about his views on the Constitution? Yes -- that he would have been delighted if the push into constitutionalized "welfare rights," so much part of the Supreme Court landscape from the mid-60s into the mid-70s, had taken more territory. He notes with great regret that the Warren Court was less radical than its reputation, that it confined the Constitution to its traditional role of protecting people from government, and declined opportunities to use the Constitution to extend governmental protection, via a "right to welfare," a "right to education," a "right to health care," etc., thus extending judicial supervision to all these political issues.

But in the end, the Obama of 2001 does not -- NOT -- come out and say the effort to constitutionalize these issues must now be picked up and continued. He affirms that these issues are political. Of course, that could just be because he was speaking in 2001, in Year One of the W Administration.

As president, he would certainly pursue welfarist goals through legislation and executive action. Would he also make the declaration of new constitutional "welfare right" a litmus for his judicial nominees? The interview raises this question but gives no answers.

:: David M. Wagner 10:48 PM [+] ::
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:: Wednesday, October 15, 2008 ::

Prof. Kmiec: a parting of the ways

Former students have been asking me about my continuing allegiance, vel non, to Prof. Douglas Kmiec's con law casebook (co-edited with Dean Eastman and Profs. Presser and Marcin), given -- Prof. Kmiec's sudden turn toward Obama advocacy, you were thinking? Shoot, man, con law casebook editors as a class think Daily Kos is a news site. No, I'm prepared not to care how the lead editor of an otherwise worthy book votes. What concerns me is his advocacy of the view that a Catholic may knowingly vote for a candidate who credibly promises to promote and extend the right to kill unborn children.

It seems to me, and subject to correction (by the Church, I mean), that there's a difference between respectable error and apostasy, that Doug Kmiec has crossed it, and that a Catholic man's gotta do what a Catholic man's gotta do.

First (always), the Church's position, because that is Christ's. It can be found, as regards the matter under discussion, in Evangelium Vitae (sections 72 and 101, I think, and possibly others). In addition, several U.S. bishops have recently spoken out, e.g. the bishops of Dallas and Fort Worth. (They cite a document from the USCCB called "Faithful Citizenship," but the USCCB as such has no teaching authority, so I prefer to cite individual bishops, whose teaching authority is -- guess what, 1Ls -- binding in their dioceses and persuasive elsewhere!)

Next, Robert George, a scholar of jurisprudence at Princeton, who happens also to be a Catholic and an acknowledged expert in Natural Law theory, has written this, in reply to all who argue that Obama is a valid "pro-life" option in spite of being the most pro-abortion candidate ever to seek the presidency.

Next, the wit and wisdom of Douglas Kmiec: try this, and of course this.

So what's left? Oh, right -- me.

Here's a lightly edited copy of a note I sent to our esteemed Faculty Secretary, Rena Campbell, just yesterday, embodying a request to be sent on to our campus bookstore:

For Wagner Constitutional Law I, Spring 2009, the books will be:

Randy Barnett, CONSTITUTIONAL LAW: CASES IN CONTEXT, Aspen Publishers, 2008, ISBN 978-0-7355-6344-5

Edward Corwin, THE “HIGHER LAW” BACKGROUND OF AMERICAN CONSTITUTIONAL LAW, Liberty Fund, ISBN 978-0-86597-695-5

These replace AMERICAN CONSTITUTIONAL ORDER by Kmiec, Eastman, Presser & Marcin, which I will no longer be using.

Some will be curious as to why I’m making this change. One reason is that the Barnett book has numerous virtues. But the single biggest reason is that Douglas Kmiec, principal editor of the other book, has been flaunting his formerly well-earned reputation as a pro-life Catholic in order to support Obama AND (much worse) to convince pro-life Catholics that they can licitly do so too. This is not just a wrong position but an apostate one, clearly irreconcilable with authoritative teaching documents of the Church, such as Evangelium Vitae.

David

EDITED TO ADD: Archbishop Chaput blasts Kmiec, other pro-Obama Catholics

:: David M. Wagner 9:36 PM [+] ::
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:: Tuesday, October 14, 2008 ::

Oh, just remembered -- I promised I'd report about the McCain-Palin rally down here in Virginia Beach, and whether anything went on there, from either side, that portended an impending police state or rule by political militias (left or right: there are political militias of the left as well as of the right, and they can get pretty frisky too, as people found out in Madrid in the early- to mid-1930s.)

Anywhere, here's what I wrote to a bunch of colleagues about yesterday's rally:

I was just at a McCain-Palin rally, here in Virginia Beach, not two hours ago. There were no solicitation-to-murder chants at all. The only anti-Obama chant was "Nobama," twice, once during Palin's remarks, once during McCain's, both times in response to Obama policies mentioned by the speaker, both times shut down by "quiet now" gestures from the speaker.

Outside the hall there were numerous Obama supporters demonstrating "in the face" of the crowd filing in -- yet all exchanges were civil, on BOTH sides. Not enlightening or deep, but definitely civil.

Either media hype is going on, or I have a knack for never being where the drama is.

Colleagues have remarked that things are rougher in other parts of the country. If so, I'm just glad that here in Virginia we still do gentility.

:: David M. Wagner 3:04 PM [+] ::
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Another data-point for Barone's file: be nice to Obama's campaign callers, or they'll set the Secret Service on you.

:: David M. Wagner 3:00 PM [+] ::
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:: Saturday, October 11, 2008 ::

"Coming Obama Thugocracy?" Michael Barone pulls together a number of data points about initiatives from the Obama campaign and elsewhere that are, to say the least, First-Amendment-insensitive.

EDITED TO ADD: Is there a new sort of "angry Right" that supplies some sort of counterpoise? Perhaps I'll be in more of a position to tell you after I attend the McCain-Palin rally in Virginia Beach on Monday.

:: David M. Wagner 12:48 PM [+] ::
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:: Friday, October 10, 2008 ::

Connecticut joins the same-sex marriage bandwagon, in what is fast emerging as the time-honored way: by a 1-vote margin of on a state supreme court.

In that bizarre state where most Republicans are liberal and most conservatives are Democrats, Republican Governor Jodi Rell says, well, that's it -- but Democratic House Speaker Jim Amann says the legislature will act....

:: David M. Wagner 3:30 PM [+] ::
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:: Wednesday, October 08, 2008 ::

The Court's refusal to reconsider Kennedy v. Louisiana in light of the overlooked death penalty for rape in the UCMJ could be seen as part of the Court's overall "the military is different" jurisprudence; cf. Rostker v. Goldberg, Goldman v. Weinberger.

Apart from that, however, it's just more of "The Constitution evolves the way we feel it should." According to Scotusblog, Louisiana's final filing in the request for rehearing "cautioned the Justices not to make the issue depend solely upon the Court’s own constitutional perceptions, arguing that Congress and the state legislatures are entitled to their say, too." Not a chance, natch:

The laws of the separate States, which have responsibility for the administration of the criminal law for their civilian populations, are entitled to considerable weight over and above the punishments Congress and the President consider appropriate in the military context.

But not, apparently, the laws of the actual state whose statute is before the Court: that must yield to a Court-determined consensus of other states' laws.

Justice Scalia:

I am voting against the petition for rehearing because the views of the American people on the death penalty for child rape were, to tell the truth, irrelevant to the majority’s decision in this case. [T]he proposed Eighth Amendment would have been laughed to scorn if it had read “no criminal penalty shall be imposed which the Supreme Court deems unacceptable.” But that is what the majority opinion said, and there is no reason to believe that absence of a national consensus would provoke second thoughts.

For myself, I am by no means sure I would support the death penalty in any circumstances as a state or national legislator. But I am very sure that the Supreme Court was not meant to be either a state or a national legislator, though it has appointed itself both.

:: David M. Wagner 10:58 AM [+] ::
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:: Monday, September 29, 2008 ::

A too-much-overlooked remark by Justice Frankfurter, perhaps applicable to Boumedienne (on my mind b/c our Law Review here at Regent just had a symposium on that and related issues); concurring in U.S. v. Lovett, Frankfurter wrote:

Not to exercise by indirection authority which the Constitution denied to this Court calls for the severest intellectual detachment, and the most alert self-restraint. The scrupulous observance, with some deviations, of the professed limits of this Court's power to strike down legislation has been, perhaps, the one quality the great judges of the Court have had in common. Particularly when Congressional legislation is under scrutiny, every rational trail must be pursued to prevent collision between Congress and Court....

For about a century, this Court astutely avoided adjudication of the power of control as between Congress and the Executive of those serving in the Executive branch of the Government "until it should be inevitably presented." Myers v. United States, 272 U.S. 52, 173. The Court then gave the fullest consideration to the problem. The case was twice argued, and was under consideration for nearly three years. So far as the issues could be foreseen, they were elaborately dealt with in opinions aggregating nearly two hundred pages. Within less than a decade, an opinion of fifteen pages largely qualified what the Myers case had apparently so voluminously settled. Humphrey's Executor v. United States, 295 U.S. 602. This experience serves as a powerful reminder of the Court's duty so to deal with Congressional enactments as to avoid their invalidation unless a road to any other decision is barred.

Justice Scalia cites this case in his concurrence in Lukumi as one of those rare cases where inquiry into legislative motivation might be warranted. With those remarkes about Myers and Humphrey's Executor, I can see what he finds attractive about the Frankfurter concurrence, if not about Justice Black's opinon for the Court.

:: David M. Wagner 10:43 PM [+] ::
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:: Tuesday, September 23, 2008 ::

Never get in a car with strangers who offer you "compelling state interest" tests, I always tell my students. Mr. Compelling State Interest is not your friend.

:: David M. Wagner 11:40 AM [+] ::
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Many thanks to those who have written asking that I RSS-enable this blog. Believe me, I have been trying to do so. Every site or Blogger function that proposes to offer help assumes that if you're already blogging, you already know all the relevant jargon. I do not, and am still trying to figure it out. Hopefully I'll make a breakthrough soon.

:: David M. Wagner 11:32 AM [+] ::
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:: Wednesday, August 27, 2008 ::

Major resource discovery: The Alexander Hamilton Institute for the Study of Western Civilization. See esp. the databases under the tabs "American History" and "Western Civilization" in the left-hand margin.

:: David M. Wagner 10:23 AM [+] ::
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:: Monday, August 18, 2008 ::

Calif. S.Ct: under garden-variety civil-rights statute -- i.e., of the "you can't bar blacks from your hotel" type -- doctors specializing in fertility treatment must extend treatment to same-sex couples.

This news item doesn't refresh the memory as to whether California has a state RFRA, but I'll bet if it does, or gets one, it'll make no difference. What's my first clue? Well -- who's representing the plaintiff suing the clinic?

:: David M. Wagner 7:38 PM [+] ::
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:: Wednesday, August 06, 2008 ::

Medellin, continued

First, I hope readers prayed for Medellin last night, and for his victims and their families. I'll continue to do so. I'm Catholic so I get to do that. 2 Maccabees 12:43-46. (Wuzzat? -- What, it's my fault somebody threw some books out your Bible?)

Second, of last night's dissents, only Breyer's was really substantive. (Court's per curiam opinon and four dissents here.) Some point-counterpoint:

[T]he ICJ has asked that the United States “take all measures necessary to ensure that [the Mexican nationals] are not executed” unless and until they “receive review and reconsideration consistent” with the ICJ’s earlier Avena decision.

I guess we're down to bedrock on the sovereignty issue here. For most votarists of public international law, those who talk seriously about national sovereignty are good for, at most, a laugh. I don't propose to entertain them unnecessarily.

[L]egislation has been introduced in Congress seeking to provide the legislative approval necessary to transform our international legal obligations into binding domestic law.

Good job, too, because that's how, in the case of a non-self-executing treaty, one turns an i.l.o. into a b.d.l. He goes on:

See Avena Case Implementation Act of 2008, H. R. 6481, 110th Cong., 2d Sess. (2008) (referred to committee, July 14, 2008).

That last bit, in parentheses, gives the game away: the bill was referred to committee at the point where Congress had one foot out the door, in midsummer of an election year, with both major party conventions looming between now and Congress's next meeting, and no one planning to do anything not directly keyed to the presidential election once that meeting happens.

In other words, for all the "international legal obligation" solemnity that surrounds it (no cute acronyms here!), the Avena Case Implementation Act has been dropped in the ashcan by the Democratic majority that supposedly favors it.

Is the Court supposed to ignore this fact? Perhaps, but if so, note what follows: a biennial ritual (or at most annual) in which a congressman places an Avena Case Implementation Act in the hopper at midsummer (like that "rose" from first-year contract law), and the Court then grants Medellin yet another stay because, you know, Congress might yet act.

I suggest, instead, that Congress has to act if it wants to, and that there is no principled way for the Court to fashion a determinate injunction-like remedy to freeze the situation to allow Congress time to act.

Congress may not have understood the legal need for further legislation of this kind.
That fact, along with the approaching election, means that more than a few days or weeks are likely necessary for Congress to determine whether to enact the proposed legislation.

A point, definitely a point. But valid only insofar as the non-self-executing nature of the Vienna Convention on Consular Relations was created by the Court's decision the Medellin case, and was utterly counter-intuitive before that. Many will argue that position. But I understood the Medellin Court to understand itself to be construing the Convention, not rewriting it. If so, then Congress knew or should have known that it needed to implement the Convention through legislation.

The rest of Breyer's arguments mainly re-package the declaration that Medellin's execution places "us" in breach of the Convention, because Medellin was not granted a hearing to determine whether his lack of consular access was harmless error. Leaving aside the question of whether the Convention is satisfied by such a harmless-error hearing -- it requires consular access, period, does it not? -- this "us" business begs the question. If "we" are in breach, it's because the particular subset of "us" whose job it is to bring "us" into compliance -- Congress -- hasn't gotten off its "us" yet on this issue. And our constitutional system -- which we can try to explain to you, Mr. ICJ, if you're interested -- doesn't allow parts of "us" to do other parts' jobs.

:: David M. Wagner 11:41 AM [+] ::
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:: Tuesday, August 05, 2008 ::

Medellin: I'm monitoring the execution sitution via Scotublog and Google News. The last-minute argument for delay is non-trivial. As presented by Lyle Denniston:

“Texas is about to execute Mr. Medellin anyway, taking the decision out of Congress’ hands and placing the United States irrevocably in breach [of the Vienna Convention on Consular Relations]....

“[T]he decision to breach the treaty has effectively been made by the District Attorney of Harris County, Texas, who, with the approval of a state trial-court judge, set an execution date at the earliest point allowed under Texas law,” the brief asserted.

That is not where the question over observing treaty rights should be left, it concluded.

In the course of the reply brief, Medellin’s attorneys specified that they were asking the Supreme Court to put the execution on hold “for a period of one year to allow Congress an opportunity to enact implementing legislation” to carry out U.S. obligations under the treaty....

OK, this deserves thought, and I'm glad the Supreme Court did not dismiss it summarily. However, two reservations, and a counter-reservation:

1. The reference to the Harris County DA and the trial judge is a bit disingenuous. Really, the State of Texas, a sovereign state, is the actor here. This may not be a dispositive fact, but rhetorically smooshing responsibility down to people who can be made to sound like bit players tends to obscure it.

2. What's magical about "one year"? Congress could have enacted implementing legislation the day it ratified the Convention, or the day after Medellin v. Texas was handed down, or the day before it went into its current recess -- excuse me, "district work period." But, as the Court held, neither the President, nor the ICJ, nor the Court itself can directly create implementing legislation, or order states to comply with the Convention as if such legislation existed. So where, exactly, would the Court get the authority to stay the execution for a year, or for any period of time, for that matter?

3. If I'm wrong about these points, I'll be very comfortable with being found so by the Court. Mr. Medellin is a very suitable candidate for the death penalty, but at the same time, I'm not so committed to the death penalty per se that I'd be vexed at being contradicted by the Court.

:: David M. Wagner 9:05 PM [+] ::
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Well, I just filled in a "survey" for the National Republican Senatorial Committee, coming out for low taxes, a strong national defense, and a marriage amendment, and against "gays" being "permitted to serve openly in the military"; but also against making it a "top priority" to secure our borders and control immigration (the question didn't specify "illegal" immigration, interestingly enough), and also against a flag-protection amendment.

Yeah, elect me some Senators with that combination of beliefs....

:: David M. Wagner 3:08 PM [+] ::
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:: Wednesday, July 16, 2008 ::

Colleague Craig Stern on SSRN: "The Coherence of Natural Inalienable Rights"

:: David M. Wagner 8:03 PM [+] ::
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:: Sunday, June 29, 2008 ::

From Heller:

In any event, the meaning of “bear arms” that petitioners and Justice Stevens propose is not even the (sometimes) idiomatic meaning. Rather, they manufacture a hybrid definition, whereby “bear arms” connotes the actual carrying of arms (and therefore is not really an idiom) but only in the service of an organized militia. No dictionary has ever adopted that definition, and we have been apprised of no source that indicates that it carried that meaning at the time of the founding. But it is easy to see why petitioners and the dissent are driven to the hybrid definition. Giving “bear Arms” its idiomatic meaning would cause the protected right to consist of the right to be a soldier or to wage war—an absurdity that no commentator has ever endorsed. See L. Levy, Origins of the Bill of Rights 135 (1999). Worse still, the phrase “keep and bear Arms” would be incoherent. The word “Arms” would have two different meanings at once: “weapons” (as the object of “keep”) and (as the object of “bear”) one-half of an idiom. It would be rather like saying “He filled and kicked the bucket” to mean “He filled the bucket and died.” Grotesque.

I kicked there ere I filled thee, no way but this,
Kicking myself, to lie like Alger Hiss


Rip. Crumple. Toss.

:: David M. Wagner 12:06 AM [+] ::
...

:: Thursday, June 26, 2008 ::

Yowza!

:: David M. Wagner 1:18 PM [+] ::
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:: Wednesday, June 25, 2008 ::

Kennedy v. Louisiana, the child-rape death-penalty case:

It would be hard to deliver a clearer, more workmanlike, here's-why-you're-wrong-any-questions kind of dissent than did Justice Alito today. Justice Scalia would have given off more sparks, but no one could have done a better job putting it down where the horses can get it: first of all, of course very few states adopt the death penalty for child rape -- they were scared by dicta in the Coker v. Georgia plurality.

Furthermore, the Court's "own judgment" consists of nothing but (1) a set of hyper-Allgeyerian susbtitutions of its own policy analyses (good though these may be) for those of the Louisiana legislature, (2) the steroidal judicial-supremacist notion that by allowing Louisiana to apply capital punishment in a way that many American states have traditionally done, the Court would thereby "expand" the death penalty (Coker, it will be recalled, did not in fact hold that the death penalty may constitutionally be applied only to murder -- that holding did not arrive until today); and (3) the judgment that murder is not only worse than the repeated rape of a child, but worse by such a margin the Eighth Amendment line between permissibility and impermissibility of the death penalty falls there.

That third argument is a very difficult one as a moral matter. Precisely because of its difficulty, combined with the absence of any constitutional text that resolves it, we may be sure that it is not an issue that the Constitution removes from the sound discretion of state legislatures. We may be sure, in other words, that Justice Kennedy's opinion in Kennedy v. Louisiana is profoundly wrong.

:: David M. Wagner 10:18 PM [+] ::
...

:: Thursday, June 12, 2008 ::

I don't know when I'll have a chance to write something at length on Boumedienne, but:

1. It seems we are now the only country in the world that grants habeas corpus to prisoners of war, wherever or under whatever circumstances taken (is Guantanamo today different in any legally relevant sense from Germany during the Bulge?).

2. The constitutional hinge may be this:

[I]f the understood scope of the writ of habeas corpus was “designed to restrain” (as the Court says) the actions of the Executive, the understood limits upon that scope were (as the Court seems not to grasp) just as much “designed to restrain” the incursions of the Third Branch. “Manipulation” of the territorial reach of the writ by the Judiciary poses just as much a threat to the proper separation of powers as “manipulation” by the Executive. [Scalia, dissenting]

:: David M. Wagner 5:08 PM [+] ::
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:: Tuesday, June 03, 2008 ::

Chuck Dunn on presidential Preacher Features: bad for candidates, bad for preachers. Amen.

:: David M. Wagner 6:10 PM [+] ::
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:: Monday, June 02, 2008 ::

As many headlines put it, Jim Gilmore "ekes out" a win over Bob Marshall in the race for the Va. Republican Senate nomination.

That must by why the Gilmore people were running around during the vote going "Eek! Eek! Eek!"

Yes, it was much closer than anyone would have expected when pro-life, pro-marriage maverick Marshall announced in January that he was going up against the state GOP establishment with a shoe-string campaign against erstwhile annointee Gilmore.

As The Virginian-Pilot's Warren Fiske perceptively remarks:

Gilmore withstood a strong tide from social conservatives and libertarians – many of them first-time convention goers – to push the GOP to the right and overhaul the party’s leadership.

Rewind and replay: social conservatives and libertarians. Yes, a coalition deemed unlikely, even impossible, by many in the media; yet there they were, cheering every Marshall speaker's reference to "100% pro-life" -- and also sporting Ron Paul 2008 stickers.

And "first-time convention goers," like my son. Now they know how the system works, and they know the establishment isn't invulnerable. They're in the system, and time is on their side. Me? Not my first time: I was there to support Mike Farris for Lt. Gov. in '93, and Jim Miller for the Senate in '94. I don't share every detail of my son's Ron Paul enthusiasm, but, like him, I was there on Saturday to support Bob Marshall.

We lost on the Senate nomination vote, but we won on the party chairman vote, tossing out the establishment and putting in a young pro-life state senator, Jeff Frederick. (Many Gilmore delegates voted with us on that.)

And can you guess what happened on Monday? Young activists -- not me, but people like my son -- got e-mails announcing that, surprise surprise, there are suddenly lots of job vacancies at Republican Party of Virginia headquarters! Personnel is policy, as Morton Blackwell always taught us.

:: David M. Wagner 9:53 PM [+] ::
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:: Friday, May 23, 2008 ::

"The first question is, is there standing?" Not much, by the time I get through with these exams.

:: David M. Wagner 3:53 PM [+] ::
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:: Monday, May 19, 2008 ::

Interesting things about Dept. of Revenue of Ky. v. Davis:

* My friends in the libertarian litigating community took it on the chin: only two Justices -- Kennedy and Alito -- bought into their claim that the Dormant Commerce Clause doctrine is a fountainhead (as it were) of judicial enforcement power for the free market.

* In dissent, Kennedy is -- once again -- off and running with high-flying generalizations, this time about history and economics. He cites at least one Lochner-era precedent, albeit one authored by Holmes. So, those who say Kennedy is a neo-Lochnerian: you're probably right. But whether he gets more than one vote besides his own depends on the doctrine being applied: Justice Alito's very brief dissent explains that he joins Kennedy's only because of the stare decisis status of the Dormant Commerce Clause doctrine...

*...speaking of which: Scalia and Thomas differ here, as they have before in Dormant Commerce Clause cases, on stare decisis. Scalia (concurring in all but III-B and IV) says, keep the DCC but don't extend it; Thomas says (I paraphrase freely) the DCC is twaddle, and who really needs stare decisis anyway, but Kentucky's differential taxation system for its own bonds vis-a-vis those of other states can be upheld solely on the grounds that states have long favored their own bonds in their tax systems, and Congress, though it has power to override this practice, has not done so; therefore -- concur in judgment only.

I'm with Thomas on this one.

:: David M. Wagner 12:02 PM [+] ::
...

It is very bizarre, I must tell you, to "write" a Scalia opinion while reading it for the first time. Just now, I was reading his opinion for the Court in U.S. v. Williams; I got to the page break at the end of page two:

After our decision in Free Speech Coalition, Congress

and the voice in my head said "went back to the drawing board." Then I scrolled down and continued with page three:

went back to the drawing board and produced legislation

It is fun being a Ninomaniac.

Btw, he continues:

with the unlikely title of the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, 117 Stat. 650.

Actually it's not unlikely at all, given Congress's recent bipartisan addiction to acronyms.

We shall refer to it as the Act.

By all means. Better than breaking into a chorus of "Hava PROTECTA."

:: David M. Wagner 11:19 AM [+] ::
...

At oral argument in Ressam, Justice Scalia seemed concerned about the inherent unfairness of criminalizing the mere "carrying" of an explosive while commiting another felony, even one unrelated to the explosives. But in the Ressam decision issued today, he joined Justice Thomas's concurrence, agreeing with the Court that such is the meaning of 18 U.S.C. §844(h)(2). The only parts he and Thomas refused to join were the legislative history parts. Hm.

:: David M. Wagner 11:13 AM [+] ::
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:: Thursday, May 15, 2008 ::

Gay marriage has been decreed for California by its Supreme Court; the decision is here. Highlights I've had time to take in so far:

* Sexual orientation is a suspect classification for Equal Protection purposes in California.
* Equal benefits are not enough: the word "marriage" has to be thrown in too, otherwise same-sex couples' feelings will be hurt (the technical term for this, "dignity and respect," is borrowed from Dworkin), and this is an unconstitutional injury.
* Tradition is a source of suspicion, not of authority: because we "used to" think interracial marriage was bad, and we "used to" think many jobs were out of bounds for women, the long-establishedness of opposite-sex marriage counts against it.
* Marriage is about the adults primarily; children are an afterthought.
* Marriage is about relationships, not about generations.

Obviously the court did not, as I suggested in the post below it might, avail itself of any split-the-difference options. Full speed ahead, we know what's right, we have the power and we'll use it.

If this isn't the "judicial activism" issue on which McCain can win the presidency, then he probably can't win it. Which may well be the case.

:: David M. Wagner 1:21 PM [+] ::
...

I'm going on a weekend-long retreat this afternoon, so I can't promise to comment on the California same-sex marriage decision until long after everyone else in Blogistan has done so. Try to live with that disappointment. Besides, the first five or so moves in the argument, either way, are by now familiar. If the California court manages to say something new, either way, that will be worth commenting on next week.

This report from ABC raises the possibility that the court could split the difference by striking down the state's current referendum-enacted one-man-one-woman law but punting the rest of the issue back to the legislative process. It would thus evade a charge of judicial activism and end-running the people's will, while at the same time, I would suggest, setting up a dynamic whereby the legislature would act under the virtual certainty that its work would keep getting struck down until it "gets it right."

:: David M. Wagner 11:08 AM [+] ::
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:: Wednesday, May 14, 2008 ::

The California Supreme Court will announce its ruling tomorrow, at 1 pm eastern time, on whether the California Constitution implies a right to same-sex marriage.

The recent trend in state courts has been toward recognizing that such a seismic change should be made, if at all, by the people's representatives in the legislatures. A writer at HuffingtonPost, however, thinks the California court is ready to transform society like a Dworkinian "Hercules," and is "readying itself for a backlash" -- "backlash" being the appropriate term when the people don't fall into line (when they do, their "voice" must prevail, and contrary judicial opinions constitute and "end run" around them).

:: David M. Wagner 6:49 PM [+] ::
...

This is, ida know, a crapton of months overdue, but I'm finally linking to the blog of the learned dean of our university's School of Government, Charles W. Dunn: the Chuck Dunn Report.

:: David M. Wagner 12:09 PM [+] ::
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:: Tuesday, May 13, 2008 ::

Why you can't support Kant. (Hat-tip: MDSS)

:: David M. Wagner 11:21 AM [+] ::
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:: Monday, May 12, 2008 ::

BLT, the Blog of Legal Times, is snarking that Scalia and Garner, by giving a CLE course based on their book, are turning it into "performance art"; BLT's post links to Garner's web site, Law Prose.

To which I say: I didn't know Bryan Garner had a web site! Well, now I link to it!

:: David M. Wagner 3:06 PM [+] ::
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:: Wednesday, May 07, 2008 ::

Scalia's C-SPAN interview with Brian Lamb

On smart young people choosing the legal profession rather than science or the humanities:

[I]t is the fact that we devote, in my view, too many of our best and brightest minds to the law. I wouldn’t like to do anything else. I mean, it’s really what I’m sort of cut out for, but I do think that overall the talent that comes into the law in this country is really an excessive proportion of the talent out there, which says something about the legal system, I suppose, that it’s gotten very complex, it’s gotten – it’s worth paying a lot of money to get the best and the brightest minds.

I’m not sure the system ought to be that way. It ought to be simpler, and we ought to be able to devote a lot of our best minds to like – to teaching, to engineering, to something useful.

Well, you know, lawyers are facilitators. We enable the work of the world to proceed smoothly, and in an atmosphere of freedom, and that’s all very important, but at the end of the day, we don’t have a product. We facilitate actions and activities by other people.

...

I am often wrongly praised as, you know, being son of an immigrant as though I’ve lifted myself up by my own bootstraps. My father was indeed an immigrant, but he was an intellectual, much more intellectual man than I am, actually.

He was a professor of romance languages at Brooklyn College. Always had a book in front of his face, in French or Spanish or Italian. He taught all three of those languages.

...

I didn’t decide to be a lawyer until I, you know, was in my last year of college and had to decide what I was going to do next year, and I ended up really not being able to make up my mind. I had an uncle, uncle Vince, who was a lawyer and seemed to have a good life and to enjoy what he did, so I said, ”I’ll go to law school.” But I can’t say I set my cap on being even a lawyer, much less a judge.

How not to bomb in an oral argument:

[T]he worst thing is a lawyer that does not have clearly in mind the theory of the lawyer’s case, and therefore when the lawyer gets questions, it’s as though, you know, wow, I never thought of that. If you don’t have your theory clearly in mind, every question is, you know, comes out of nowhere, and you’re scrambling for some answer.

On Bush v. Gore and "get over it":

[I]t would have come out the same way had the court not intervened because the press did an extensive study of each of the counties in Florida and had the votes, didn’t count the dimpled chads and the hanging chads and all of that. Had they been counted the way Mr. Gore wanted, he would still have lost.

And lastly, we – no, not lastly, penultimately, we didn’t go looking for trouble. The court didn’t uninvited leap into this electoral dispute. It was before the courts because Mr. Gore had brought it before the courts. He wanted the courts to decide the election, and when the matter came to us, it was simply a question whether the last word was going to be the Florida Supreme Court or the United States Supreme Court as to who would win the Presidential election.

When one of the parties to the cases said the Florida Supreme Court violated the federal Constitution, what were we supposed to do, turn the case down as being not important enough? Hardly.

And the ultimate point is that to refer to just so-called conservative majority, I don’t think conservative-liberal makes any sense in the context of the Supreme Court, but the vote as to whether the federal government would intervene in this dispute was not even close. It was seven to two. People forget that. By a vote of seven to two, the Supreme Court held that the Florida Supreme Court had violated the Constitution.

So, you know. Get over it, Brian.

On the subjunctive:

We used to have a formulary conclusion of all of our opinions on the D.C. Circuit. It would go for the foregoing reasons, the judgment of the – it is ordered that, solid caps, ordered that the judgment of the District Court is affirmed.

That used to drive my father up the wall. I mean, he would say, ”Son, you can’t say it is ordered that it is affirmed. You have to use a subjunctive. It is ordered that it be affirmed.”

So I ended up being the only judge on the D.C. circuit who would have his opinions ordered that it be affirmed. Made my father happy.

On what good law professors do:

[T]he professors teach themselves rather than the law. The law is just like chewing gum. It’s what they use to develop your mental jaws, and you spit it out because the law will probably change by the time you’re in practice for 20 years. It’s important to have good teachers.

Now some law schools are better teaching law schools than others, and the best thing to get is a school that both has very intelligent professors and professors who place a premium on teaching.

You know, I’ve been in academia, so I know the game, and unfortunately the incentives are all long. You get to be a prominent academic by publishing, not by teaching. You become attractive to other law schools if you want to move up the ladder by your publications, not by your teaching. That’s sort of unfortunate.

On his recently ramped-up availability to the media:

I’ve sort of come to the conclusion that the old common law tradition of judges not making public spectacles of themselves and hiding in the grass has just broken down. It’s no use, I’m going to be a public spectacle whether I come out of the closet or not, beyond T-shirts and bobblehead dolls and what-not.

So if, you know, if I am going to be a public figure, I guess the public may as well get their notion of me firsthand rather than filtered through people such as Brian Lamb, you know....

Scalia T-shirts, get your Scalia T-shirts....

:: David M. Wagner 5:38 PM [+] ::
...

Mildred Loving, RIP. I adopt as "for the editors" the statement of the Family Research Council:

America lost a true pioneer for civil rights yesterday as Mildred Loving, a black woman famous for her successful challenge of a state interracial marriage ban, died at the age of 68. Together with her husband Richard, the Loving case, which reached the Supreme Court in 1967, was an important landmark in the battle for racial equality. Never one to take credit for her courage, Mildred said last June, "I never wanted to be a hero--just a bride." Although homosexual activists are fond of portraying the Lovings' victory as a precedent for their cause, the Loving case didn't alter the definition of marriage but affirmed it by allowing any man to marry any woman. The nation is indebted to Mildred for a legacy that so aptly lives up to the couple's shared name.

EDITED TO ADD: PBS interviews Bernard Cohen, the Lovings' Supreme Court counsel. Hat-tip: colleague Prof. Gloria Whittico.

:: David M. Wagner 12:22 PM [+] ::
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:: Tuesday, April 29, 2008 ::

The Scalia-Garner book on app. ad. is out!

:: David M. Wagner 7:13 PM [+] ::
...

In southeastern Virginia today, we're not in Kansas anymore -- yet. One more tornado and we might be. Here at Regent, our prayers go out to the injured, the displaced, the families of the dead -- and, um, yeah, to the dead, though I guess that's more controversial. (Doesn't anyone read First Maccabees? -- Oh, right....)

:: David M. Wagner 6:57 PM [+] ::
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:: Friday, April 18, 2008 ::

Prescribing what shall be orthodox

The judge in the Texas polygamist "sect" case has found in favor of continued state custody for the children, at least so far.

One remarkable fact is that the finding is based on no proven abuse, but only on the asserted strangeness of the sect's beliefs. With a hat-tip to Eugene Volokh, I would draw attention the following lines from this story:

Under cross-examination, state child-welfare investigator Angie Voss conceded there have been no allegations of abuse against babies, prepubescent girls or any boys.

But her agency, Child Protective Services, contends that the teachings of the FLDS — to marry shortly after puberty, have as many children as possible and obey their fathers or their prophet, imprisoned leader Warren Jeffs — amount to abuse.

There you have it. No abuse -- not even "allegations of abuse" -- but a big problem with "the teachings of" the sect.

In West Va. Bd. of Ed. v. Barnette, Justice Jackson said for the Court:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.

However celebrated, this dictum was always blather, and its blatherdom has been demonstrated again today.

:: David M. Wagner 9:51 PM [+] ::
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:: Wednesday, April 16, 2008 ::

:: David M. Wagner 2:52 PM [+] ::
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:: Saturday, April 12, 2008 ::

Historical portions of Everson and Engel = American History in 30 Seconds with Bunnies

:: David M. Wagner 3:32 PM [+] ::
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:: Monday, April 07, 2008 ::

From Slate: Scalia on brief-writing

:: David M. Wagner 11:34 AM [+] ::
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:: Wednesday, April 02, 2008 ::

A post by Jason Wojciechowski about Erie that I might want to come back to later, so I'm posting it here

:: David M. Wagner 1:48 PM [+] ::
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:: Friday, March 28, 2008 ::

Here's the passage from the U.S. v. Ressam oral argument that I was referring to:

JUSTICE SCALIA: General, could Congress pass a law that said if you wear a wristwatch during the commission of any crime, you get another 10 years?

GENERAL MUKASEY: A statute like that would be entirely unreasonable. It was not entirely unreasonable for Congress to have said if you carry an explosive during the commission of a felony, you've added something enormously volatile.

JUSTICE SCALIA: Surely it depends on what the felony is. If the felony is the filing of a dishonest tax return and you have a can of gasoline with you when you mail the letter, it seems to me quite as absurd as saying wearing a wristwatch in the course of a felony. That's what troubles me about this. I'm tempted to -- I think everybody is tempted to distort the "during" to mean something else, simply because the consequences of performing a completely lawful act wearing a wristwatch, carrying explosives -- given the broad definition of explosives, I guess it would include having -- having some cartridges, explosive cartridges?

GENERAL MUKASEY: It would. But the temptation --

JUSTICE SCALIA: That's perfectly lawful, and you get another 10 years for it just because you're mailing a letter to the IRS at the same time.

GENERAL MUKASEY: It is perfectly lawful. Congress was aware that Title 18, not to mention all the other titles, are chockablock with felonies. There are thousands of them out there. But nonetheless, it wanted to make sure that the mainstream that it was concerned with, which is nicely illustrated by the facts of this case, were taken care of; and so it passed a very broad statute. We concede that it was a very broad statute. "Any felony" couldn't be broader. But that was Congress's choice. And if
Congress chooses to amend the statute, respectfully, it ought to be Congress that amends it.

So, the AG has made two points:

(1) If you mail a false income tax return while you have can of gasoline in your car (or maybe just enough gas in your tank to get to the mailbox?), you can get an extra ten years tacked onto your sentence for that.

(2) Congress has made pretty much everyone a federal felon, and it did so in order for U.S. Attorneys to have the "tools" they "need" to go after the ones that in the "mainstream" we're "concerned with."

:: David M. Wagner 12:13 PM [+] ::
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:: Thursday, March 27, 2008 ::

Scalia Criticizes News Media, the news media are reporting (guess who's going to win this round).

At a conference of attorneys in Washington, Scalia said news organizations often fail to focus on the text of the laws the court interprets, citing accounts of last month's 8-1 decision that made it harder for consumers to sue makers of federally approved medical devices.

He singled out for criticism a New York Times editorial on the case headlined "No Recourse for the Injured."

Well yeah, and it's an old, old problem. Even at the supposedly highest levels of journalism, no one cares about the law in reporting legal cases: the human drama, which of course is part of the story, becomes the entire story. As if there were no written or unwritten law to go on, and an injured plaintiff were simply kneeling before the Court and asking "Do Your Honors think it would be a good thing or a bad thing if I were compensated for my injuries?"

And if the ruling is that Congress didn't intend to protect plaintiffs in this category (leaving them, perhaps, to state remedies), or that the Due Process Clause doesn't oblige state government to come to their aid, or that a particular plaintiff is not among those who have an excuse for missing a well-known filing deadline, or whatever other grounds might exist under a rule-of-law system for denying relief in a particular case, all that the New York Times-reading caste -- the people who rule us -- ever learn about the matter, over their coffee or in their taxicab, is that the "conservative" Court just tossed another widow into the snow.

Meanwhile, apparently beneath the NYT's radar screen, Justice Scalia has lambasted Attorney General Mukasey for trying to add ten years to a "lying to a federal official" offense because it was committed while possessing a firearm:

The case involved the so-called "Millennium Bomber," Ahmed Ressam, who tried to smuggle explosives into the United States from Canada. A jury convicted Ressam on nine counts, including carrying explosives during a felony (lying to an immigration agent). Ressam's lawyers argued that the lie was not related to the explosives, so count nine should be thrown out for sentencing purposes.

Justice Ruth Bader Ginsberg asked Mukasey, who was a federal judge for almost 20 years, why prosecutors tied the explosives charge to the false statements in the first place, "instead of some charges with which it would have been more logically linked," like conspiracy to commit an act of terrorism.

Mukasey said the evidence supporting the false statements charge "was, to use a colloquialism, a lead pipe cinch. He had clearly made a false statement. He had clearly carried an explosive while doing it." Prosecutors wanted a charge on which jurors were sure to convict him.

Justice Antonin Scalia asked, "If the felony is the filing of a dishonest tax return, and you have a can of gasoline with you when you mail the letter," can you get another 10 years added to your sentence just because technically you were carrying explosives?

Chief Justice John Roberts asked whether there's a Justice Department policy not to bring those kinds of absurd prosecutions.

"Not that I'm aware of," Mukasey responded.

:: David M. Wagner 6:43 PM [+] ::
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:: Tuesday, March 25, 2008 ::

From the Chief's opinion for the Court in Medellin:

A non-self-executing treaty, by definition, is one that was ratified with the understanding that it is not to have domestic effect of its own force. That understanding precludes the assertion that Congress has implicitly authorized the President—acting on his own—to achieve precisely the same result. We therefore conclude, given the absence of congressional legislation, that the non-self-executing treaties at issue here did not “express[ly] or implied[ly]” vest the President with the unilateral authority to make them self-executing. See [Youngstown] at 635 (Jackson, J., concurring). Accordingly, the President’s Memorandum does not fall within the first category of the Youngstown framework.

And, distinguishing Dames & Moore v. Regan:

The claims-settlement cases involve a narrow set of circumstances: the making of executive agreements to settle civil claims between American citizens and foreign governments or foreign nationals. They are based on the view that “a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned,” can “raise a presumption that the [action] had been [taken] in pursuance of its consent.” Dames & Moore, supra, at 686 (some internal quotation marks omitted)....

Even still, the limitations on this source of executive power are clearly set forth and the Court has been careful to note that “[p]ast practice does not, by itself, create power.” Dames & Moore, supra, at 686.

...Indeed, the Government has not identified a single instance in which the President has attempted (or Congress has acquiesced in) a Presidential directive issued to state courts, much less one that reaches deep into the heart of the State’s police powers and compels state courts to reopen final criminal judgments and set aside neutrally applicable state laws....

I'll only have time to eyeball the dissent briefly today. Far more law-review articles are cited there than in the opinion of the Court. What do you expect? If you want support for the proposition that public international law reduces everything else -- including the traditional police powers of the states, including the U.S. Constitution itself -- to mere and interchangeable "municipal law," you have to go to "the commentators," because actual sources of American law won't help you very much.

:: David M. Wagner 1:23 PM [+] ::
...

Reading over Medellin right now. Looks like the right outcome: even for us Curtiss-Wrightists, the presidential claims here went far indeed. But because the domestic application of international public law was also at stake, the role-reversal within the Court is pretty much complete, with the liberal wing supporting presidentialism as long as it's twinned with womping Texas with a treaty. At least that's my first take.

Also -- way to hand down a controversial decision before the last week in June, Roberts Court!

:: David M. Wagner 1:01 PM [+] ::
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:: Friday, March 21, 2008 ::

Not the D.C. v. Heller Oral Argument. (Hat-tip: TKB)

:: David M. Wagner 12:31 AM [+] ::
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:: Sunday, March 16, 2008 ::

The Founders and their agents. From NRO/rotflmao.

:: David M. Wagner 1:16 AM [+] ::
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:: Friday, February 29, 2008 ::

Va. S. Ct. decision striking down regional transportation authorities (Marshall v. NVTA): it's all about --

* non-delegation
* careful monitoring of the power to tax
* democratic accountability, esp. where taxing is concerned

Got to L-O-O-O-O-V-E IT!

(The other part of the decision -- finding no constitutional flaw re the "single subject rule" -- was also correct and well reasoned: classic Hamiltonian/Marshallian "let the ends be legitimate" kind of thing.)

:: David M. Wagner 10:35 PM [+] ::
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:: Thursday, February 28, 2008 ::

William F. Buckley, Jr., 1925-2008. Oh, to be sure, one can complain (one did, in fact) that in his later years he seemed spent more time schmoozing the New York glitterati than manning the conservative barricades. No matter. For three or four generations, he was proof that conservatives could not rightfully be denied a place among those glitterati, if they happened to desire one; that Lionel Trilling (see the linked WSJ editorial) was just dead wrong and behind the times.

Bill's amusing and stirring book Up from Liberalism (his best polemical work, imo), and the twinkling eye with which he would skewer guests on Firing Line, inspired me, and, as I compare notes with colleagues of my own age and younger, I suspect hundreds of thousands more.

The WSJ collects more Buckley rhetorical gems here. My favorite:

[W]e offer, besides ourselves, a position that has not grown old under the weight of a gigantic, parasitic bureaucracy, a position untempered by the doctoral dissertations of a generation of Ph.D.s in social architecture, unattenuated by a thousand vulgar promises to a thousand different pressure groups, uncorroded by a cynical contempt for human freedom. And that, ladies and gentlemen, leaves us just about the hottest thing in town. ("Statement," National Review, 1955)

:: David M. Wagner 11:04 PM [+] ::
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:: Sunday, February 24, 2008 ::

Clinton Turns From Anger to Sarcasm. Oh that'll work.

:: David M. Wagner 8:44 PM [+] ::
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:: Friday, February 22, 2008 ::

Yesterday's electronic edition of London's Daily Telegraph led with "Biggest Brain Drain from UK in 50 Years," ("as highly qualified professionals settle abroad"), and further along ran stories that, though not overtly linked to the first, might help explain it.

For example: "CCTV evidence can lead to parking fine":

Millions of motorists are likely to incur parking fines without realising it after being caught on CCTV.

And: "Robber's death could lead to murder charge":

A shopkeeper could be charged with murder after defending himself against an armed robber who was killed by his own knife, police said yesterday.

Tony Singh was about to drive home from work when he was attacked by a career criminal who smashed his car window and demanded his takings.

During the ensuing struggle at the corner shop and off-licence in Skelmersdale, Lancs, Liam Kilroe, who had convictions for armed robbery, assault and burglary, suffered a fatal stab wound to the chest.

:: David M. Wagner 3:30 PM [+] ::
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:: Wednesday, February 20, 2008 ::

Well well -- looks like a good day for federal preemption! Must read now -- OM NOM NOM.....

:: David M. Wagner 10:21 PM [+] ::
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:: Saturday, February 16, 2008 ::

Unless it's whatever they put in the water in California: I trust this is just a ploy to provoke McCain to address Catholic issues more squarely. Otherwise I'll have to conclude that my good friend and sometime mentor Doug Kmiec has gone utterly 'round the bend.

EDITED TO ADD: A Catholic reply here.

:: David M. Wagner 11:47 PM [+] ::
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:: Saturday, February 09, 2008 ::

For my (informal) Plato students: Yale's Prof. Steven Smith teaches intro Political Philosophy, incl. The Republic....

:: David M. Wagner 6:23 PM [+] ::
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:: Wednesday, January 30, 2008 ::

Fruits of socialized medicine: public officials get to decide whether to deny you medical care based on your unhealthy habits, such as smoking, drinking, eating too much -- or getting older.

:: David M. Wagner 5:40 PM [+] ::
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:: Monday, January 28, 2008 ::

Our little symposium last month on Standing, mentioned by my bff Jon, here at the Volokh Conspiracy -- many thanks to Prof. Adler for his participation!

:: David M. Wagner 12:26 PM [+] ::
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:: Wednesday, January 23, 2008 ::

In Britain, a court challenge to the potentially sovereignty-ending Lisbon Treaty -- John Gouriet writes:

We believe that [U.K. government] ministers are limited by the confines of the Constitution; that they have no authority to surrender, or lend, sovereignty to another power, especially one that is unelected, unaccountable, irremovable and owes no allegiance to the British Crown.

They have no power to assume Royal prerogative or the right to break their oaths of allegiance and office, or cause the Sovereign to break his or her contract (Coronation Oath) with the people to govern according to their laws and customs.

If ministers try to enact bad or damaging law, the Crown, one of the three legs of governance, has a duty to refuse assent. Anyway, how can the strictly impartial Crown accept partial advice based on political whim?

We belive parliamentary "supremacy" and the doctrine of no government "binding its successor" are confined to the statutes of administrative law, not constitutional law.

We also believe that constitutional law cannot simply be repealed by introducing a new act. If it can be repealed at all, it must be repealed expressly in full and normal procedure.

Furthermore if the doctrine that Parliament may not destroy its own "omnipotence" is correct, by adopting permanent subservience to Brussels, from which already nearly 80% of our laws originate, its so-called "omnipotence" would indeed be destroyed.

In 1803 in the United States in a significant case, Marbury v. Madison, a Supreme Court Judge, Marshall, held that the US Constitution, based on the English original, was superior to a certain ill-conceived Act introduced by Congress and he declared the offending statute void.

We urgently need a Marbury v. Madison type case here and every one in Britain should be thankful that Stuart Wheeler is to ask the courts urgently whether there is any lawful authority for our government to over-ride our existing Constitution and impose the EU version.

I know counsel have assembled a powerful case to argue that the Government has no such authority and Mr. Wheeler is prepared to go all the way to the House of Lords to obtain justice for the British people and mark out the constitutional limits of parliamentary power. Without this the people no longer have any remedy against misfeasance or tyranny.

The case naturally is likely to be very expensive and all possible support is needed. Please send contributions marked DT and payable to, CONSTITUTIONAL CHALLENGE c/o This England, PO Box 52, Cheltenham GL50 1YQ.

John Gouriet was a co-founder of the Freedom and is Chairman of Defenders of the Realm, which challenged the Nice Treaty in 2003 and with This England Magazine raised 1,125 million signatures in 2004 to petition the Queen not to grant assent to an EU constitution without support of the majority of the electorate.

:: David M. Wagner 10:27 PM [+] ::
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:: Monday, January 21, 2008 ::

Well, what a long time it's been. The Christmas break wasn't an easy one for me this year. I want to thank my many students and colleagues who helped, and are helping, to make it easier.

There's so much to write about; esp. SCOTUS oral arguments that need commenting. I'll probably focus, at least at first on Medellin. (How do you know when claims of executive authority in foreign policy have gone too far? When John Yoo files a brief on the other side.)

In the meantime, as I bid farewell for the time being to criminal law, I note that the Florida Bankers Association is trying to cut down on robberies by curbing the robbers' standard kit:

SARASOTA, Fla. — Responding to a more than one-third hike in bank robbery, the Florida Bankers Association is urging its members to adopt new rules.

Not additional guards or cameras, but a dress code for customers.

The group rolled out a "No Hats, No Hoods, No Sunglasses" program, which includes lobby signs asking customers to remove those items before approaching a teller.

No striped jersies? No masks? No laundry bags with dollar signs? The story goes on:

Those who refuse would be directed to an area with more security or a more experienced teller.

Yeah... named Moose. After all, doesn't say what he's experienced with.

:: David M. Wagner 5:56 PM [+] ::
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